Research area: Environmental Governance and Policy

Appellate Authorities under Pollution Control Laws in India: Powers, Problems and Potential

Introduction

Over the last four decades, courts in India have developed a rich jurisprudence on environmental issues. The large body of environmental case-law reflects the judiciary’s predominant approach to environmental grievance redressal – directing regulatory institutions to take action against persistent violations and injustices, expanding the scope of environmental regulation and recommending special environmental adjudicatory mechanisms to make environmental justice more accessible. However, apart from a few judgments there has been less judicial attention, and resultant executive action, to strengthen existing structures and processes for effective redressal against administrative arbitrariness or inaction. This paper focuses on an often overlooked aspect of environmental grievance redressal, viz., the effectiveness of existing redressal forums. Such assessments of the National Green Tribunal (NGT) are already emerging. But, here the authors evaluate the effectiveness of a set of much older environmental redressal forums viz., the Appellate Authorities constituted under the Water (Prevention and Control of Pollution) Act 1974 (the Water Act) and the Air (Prevention and Control of Pollution) Act 1981 (Air Act) on two broad dimensions – ability to deliver good quality decisions and accessibility.

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Tackling the health burden of air pollution in South Asia

Summary

Air pollution exposure is the second most important risk factor for ill health in South Asia, contributing to between 13% and 21.7% of all deaths and approximately 58 million disability adjusted life years (DALYs) through chronic and acute respiratory and cardiovascular illnesses.1 Of the top 30 cities in the world with the poorest air quality in 2016, 17 are in South Asia.2 The impact of air pollution transcends boundaries. The “brown cloud”—caused by pollution from carbon aerosols—is a phenomenon captured in satellite images of atmospheric haze over South Asia, as well as China. South Asia has one of the highest concentrations of black carbon emissions from cars and trucks, cooking stoves, and industrial facilities. In addition to their effect on health, black carbon particles are a short lived climate pollutant with a possible impact on precipitation patterns and on the Himalayan glacier system, which threatens water resources in the region.3

Collective regional action to monitor air quality and implement evidence based policies and interventions is needed. While countries have introduced promising initiatives in recent years, comprehensive health centred strategies are lacking. We present the status of air pollution and health effects in South Asia, and propose urgent, concerted action across sectors to achieve recommended air quality standards for the people of the region.

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Redefining public health leadership in the sustainable development goal era

Abstract

Adoption of the Sustainable Development Goals (SDGs) by member states of the United Nations (UN) has set a new agenda for public health action at national and global levels. The changed context calls for a reframing of what constitutes effective leadership in public health, through a construct that reflects the interdependence of leadership at multiple levels across the health system and its partners in other sectors. This is especially important in the context of Low and Middle Income Countries (LMICs) that are facing complex demographic and epidemiological transitions. The health system needs to exercise leadership that effectively mobilises all its resources for maximising health impact, and channels trans-disciplinary learning into well-coordinated multi-sectoral action on the wider determinants of health. Leadership is essential not only at the level of inspirational individuals who can create collective vision and commitment but also at the level of supportive institutions situated in or aligned to the health system. In turn, the health system as a whole has to exercise leadership that advances public health in the framework of sustainable development. This commentary examines the desirable attributes of effective leadership at each of these levels and explores the nature of their inter-dependence.

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Public Participation in Indian Environmental Law

Summary

This chapter, published in the book Sharing the Costs and Benefits of Energy and Resource Activity: Legal Change and Impact on Communities (Oxford University Press), analyses the legislative and regulatory safeguards that protect and foster public participation in environmental governance in India. It considers the environmental rights jurisprudence that has been developed by the Indian courts and discusses it in the context of the three procedural rights that form part of Rio Principle 10.

 

In particular, the chapter examines the participatory processes under the Environment Impact Assessment (EIA) Notification, 2006 and the Forest Rights Act, 2006. It describes the opportunities provided for public engagement in the two laws and evaluates whether the participatory processes are indeed effective and whether public concerns can influence regulatory outcomes. The chapter concludes that while Indian law and judicial practice supports procedural rights in relation to environmental decision making, in practice, these rights are not just poorly implemented but also in danger of significant erosion.

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Reforming the liability regime for air pollution in India

Abstract

The recent uproar about the toxic levels of pollution in the country’s national capital region has once again brought to fore the failure of the regulatory and legal mechanisms in India to control air pollution. According to a World Health Organisation study released in 2014, 13 of the top 20 cities world-wide with the worst quality of air are Indian cities. For decades now the worsening quality of air across the country has been a cause for serious concern; yet the Central and State governments have not been able to contain it. In fact in many ways, governments have not only condoned instances of aggravated pollution, but have also actively permitted pollution to rapidly increase by granting approvals to polluting industries, not taking measures to effectively control vehicular and industrial pollution, and by practically ignoring significant sources of pollution like building construction and diesel generators.
 

Legislative acknowledgement of the problem of air pollution, and the need to tackle it, came more than three decades ago when the Air (Prevention and Control of Pollution) Act 1981 [‘the Air Act’] was passed by the Parliament. But this early acknowledgment of the problem, and regulatory mechanisms set up consequently, have not been able to restrict the sharp upward trajectory of air provisions – encapsulating both criminal liability under the Air Act, the Indian Penal Code and the Code of Criminal Procedure as well as civil liability under the National Green Tribunal Act 2010 and the Code of Civil Procedure. It does not, however, discuss the rights-based jurisprudence that has evolved from judgments of the Supreme Court and the High Courts (arising primarily under their writ jurisdiction) recognising a right to pollution free air. A writ remedy is a constitutional remedy and available notwithstanding statutory limitations. It is however a discretionary remedy, and courts are generally reluctant to entertain cases if alternative efficacious remedies are available under other statutory provisions.
 
The essay is divided into three parts. The first part discusses the relevant provisions of the law pertaining to liability for causing air pollution. The second part identifies three critical issues that have emerged in the current liability regime. The third and final part proposes a way forward.

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Demystifying the Environmental Clearance Process in India

Introduction

In recent years there have been several controversies regarding projects being granted (or denied) environmental regulatory approvals. While many civil society groups and those adversely affected believe that legal procedures are being bypassed for commercial gain at immense cost to the environment and the larger public interest; the corporate sector, and at least sections of the government, perceive the regulatory processes to be a roadblock in the country’s growth trajectory. This paper maps out the process to be followed before projects are granted one such regulatory approval – the environmental clearance under the EIA Notification 2006 – and presents an analysis of some of the problematic aspects in its design and implementation. Several stakeholders with a variety of interests, often conflicting, are involved, and the process is deeply contentious with significant implications for a range of rights. This paper aims to bring some clarity to our understanding of this complex process through a critical examination of the Notification, related documents and judicial pronouncements.

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Case Note: Access to Information as Ruled by the Indian Environmental Tribunal: Save Mon Region Federation v. Union of India

Introduction

On 14 March 2013, the National Green Tribunal of India passed an order in an ongoing statutory appeal against the environmental approval granted to a hydropower project. The order related to the preliminary issue of condoning a delay in the filing of the appeal. The Tribunal attributed a significant part of the delay to the nondisclosure of complete information regarding the approval. The delay in filing was condoned as concerned authorities had not complied with the relevant environmental regulations. Although the order did not address the merits of the case, it is of great significance for the Indian environmental justice system since it grapples with one of the key hurdles in the regime – poor access to information – and thus has the potential to transform the environmental regulatory space by making it more transparent. Environmental decision-making processes, particularly in the developing countries, are often opaque and inaccessible. India’s experience in striving to improve its processes may thus provide useful lessons for other jurisdictions.

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The Rise of the Regulatory State of the South: Infrastructure and Development in Emerging Economies

Summary

Understanding the regulatory state of the south, and particularly forms of accommodation to political pressures, could stimulate a broader conversation around the role of the regulatory state in both north and south.This volume seeks to provoke such a discussion by empirically exploring the emergence of regulatory agencies of a range of developing countries across Asia, Africa, and Latin America. The cases focus on telecommunications, electricity, and water: sectors that have often been at the frontlines of this transition. The central question for the volume is: Are there distinctive features of the regulatory state of the South, shaped by the political-economic context of the global south in the last two decades? To assist in exploring this question, the volume includes brief commentaries on the case studies from a range of disciplines: development economics, law and regulation, development sociology, and comparative politics. Collectively, the volume seeks to shape the contours of a productive inter-disciplinary conversation on the emergence of a significant empirical phenomenon – the rise of regulatory agencies in the developing world – with implications both for the study of regulation and the study of development.

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